Unauthorised use of a trademark sentencing guideline

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Closes 30 Sep 2020

Introduction

Background

The full legislative provisions for the offence can be found at https://www.legislation.gov.uk/ukpga/1994/26/section/92

In summary the offence of unauthorised use of a trade mark can be committed by possessing or selling counterfeit goods or by counterfeiting or possessing the means of counterfeiting goods with a view to making a gain or causing a loss and without the consent of the owner of the trade mark.

Cases that are prosecuted typically relate to clothing, footwear or accessories (such as handbags), but also include computer games, toys, cosmetics, cigarettes and tobacco, car parts and electrical equipment.  In some cases the prosecution may relate to the possession of labels or packaging bearing trademarks rather than the counterfeit goods themselves. Cases vary from the very unsophisticated such as selling a few obviously fake items on a market stall or online, to highly organised and profitable businesses manufacturing or importing a large quantity of high quality counterfeit ‘designer’ goods.

This is a relatively low volume offence with 420 adults and 32 organisations sentenced in 2018. It is an offence that sentencers are unlikely to have much experience of sentencing and the Council considered that comprehensive guidelines would therefore be of great assistance.

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